American Society for Legal History Announces 2022 Student Research Colloquium @ASLHtweets

The American Society for Legal History announces the 9th annual Student Research Colloquium (SRC) November 9-10, 2022. 

Target applicants include early-post-coursework Ph.D. students and historically minded law students.  Students working in all chronological periods and all geographical fields are encouraged to apply.  Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have never received any formal training in legal history.  A student may present a paper at the annual meeting and participate in the SRC in the same year.

The ASLH will at least partially and, in many cases, fully reimburse students’ travel, hotel, and conference-registration costs.

To apply, please submit the following three items to John Wertheimer at:  srcproposals@aslh.net:

• a cover letter that describes, among other things, how far along you are and approximately how many years remain in your present course of study;
• an up-to-date CV; and
• a two-page, single-spaced research statement that begins with a working title and proceeds to describe the in-progress research project that you would like to present at the colloquium.

Application deadline: June 1, 2022.

Levine on Beyond "Big Government": Toward New Legal Histories of the New Deal Order's End @paulesabin @michlawreview

Gabriel L. Levine, Princeton University Department of Politics, is publishing Beyond 'Big Government': Towards New Legal Histories of the New Deal Order's End in the Michigan Law Review. Here is the abstract.

This essay reviews Professor Paul Sabin's recent book, Public Citizens, and offers the beginnings of an alternative legal history of the New Deal order's end. Sabin argues that liberal lawyers—and not just conservative activists—helped unmake the New Deal order from within. Through their vociferous criticisms of federal agencies, activists led by Ralph Nader undermined citizens' confidence that government could serve the “public interest.” Public Citizens is a major accomplishment; it deserves a wide audience among scholars of legal history, administrative law, and environmental law. However, Sabin overstates liberal complicity in unmaking “big government.” In the process, he overlooks much of what made public-interest liberalism both intellectually distinctive and politically vulnerable. Building upon Sabin’s insights, I sketch a new historical account of public-interest liberalism—one that considers not just how much government public-interest liberals wanted, but also what kind. I focus here on public-interest liberals' core project: environmental law. Public-interest liberals, I argue, were centrally committed to two distinct but related ideas: regulation in public policy and legalism in political morality. This combination was generative, but proved short-lived, as liberals were unable to muster a convincing response when the courts turned against them. Environmental law today endures, but as the remnants of an exhausted ideological synthesis. Transcending this synthesis is essential in today's struggle for a livable climate.

Download the book review from SSRN at the link.

Newly Published: Jeremy Bentham and Australia (Edited by Tim Causer, Margot Finn, and Philip Schofield, UCL Press), Free for Download @TimCauser @ElCatHome @UCLpress

 New Publication

Jeremy Bentham and Australia is a collection of scholarship inspired by Bentham’s writings on Australia. These writings are available for the first time in authoritative form in Panopticon versus New South Wales and other writings on Australia, a volume in The Collected Works of Jeremy Bentham published by UCL Press.

 

In the present collection, a distinguished group of authors reflect on Bentham’s Australian writings, making original contributions to existing debates and setting agendas for future ones. In the first part of the collection, the works are placed in their historical contexts, while the second part provides a critical assessment of the historical accuracy and plausibility of Bentham’s arguments against transportation from the British Isles. In the third part, attention turns to Bentham’s claim that New South Wales had been illegally founded and to the imperial and colonial constitutional ramifications of that claim. Here, authors also discuss Bentham’s work of 1831 in which he supports the establishment of a free colony on the southern coast of Australia. In the final part, authors shed light on the history of Bentham’s panopticon penitentiary scheme, his views on the punishment and reform of criminals and what role, if any, religion had to play in that regard, and discuss apparently panopticon-inspired institutions built in the Australian colonies.

 

This collection will appeal to readers interested in Bentham’s life and thought, the history of transportation from the British Isles, and of British penal policy more generally, colonial and imperial history, Indigenous history, legal and constitutional history, and religious history.

The book is edited by Tim Causer, Margot Finn, and Philip Schofield.

Jeremy Bentham and Australia: Convicts, Utility, and Empire (UCL Press) is free for download at this link. 

 

Roberts on A Poetics of Trademark Law @lexlanham @BerkeleyTechLJ @UNHLaw

Alexandra J. Roberts, University of New Hampshire School of Law, is publishing A Poetics of Trademark Law in volume 38 of the Berkeley Technology Law Journal (2023). Here is the abstract.

Poetry and trademarks have a lot in common. Both use language to persuade. Both aspire to say much with little. Both deal in ambiguity, though perhaps only poetry is content to reside in it permanently. While poetry is associated with education and erudition, trademarks are considered a lingua franca, readily understood by all. But reading a trademark remains, in the words of Laura Heymann, “at heart, an interpretive exercise.” Poetic devices like rhyme and alliteration play a role in what trademarks mean and how readers of trademarks can locate and articulate that meaning, but their use and interpretation have received little attention in doctrine or scholarship. While applicants and litigants sometimes allege that their marks incorporate poetic devices in support of a claim of distinctiveness, unitariness, or similarity (or the lack thereof), and factfinders sometimes grant credence to those arguments, both groups tend to use literary terms imprecisely. And that imprecision matters. This Article explores the poetics of trademarks. It calls upon several overlapping senses of the word “poetics”: a study of rhetorical devices; a strategy for interpretation; and a structuring principle undergirding trademark law itself. It defines a number of commonly used poetic devices, offers examples from both poetry and trademarks, and discusses federal court and USPTO decisions that consider their effects on protectability or infringement. Poetic devices have the potential to guide factfinders to deeper insight about word marks. The devices discussed offer ways to articulate what and how a mark means—its denotations, connotations, rhythm, music—specifically and precisely. By treating a trademark as a tiny poem, we make space to honor its complexity.

The full text is not available from SSRN.

Carpentier and Spaak on Sources of Law in Continental Analytical Jurisprudence @CarpentierUT1

Mathieu Carpentier, Universite de Toulouse 1 Capitole, and Torben Spaak, Stockholm University, are publishing Sources of Law in Continental Analytical Jurisprudence in Jurisprudence in the Mirror (L. Burazin, M. S. Green, and G. Pino, eds., Oxford University Press) (forthcoming). Here is the abstract.

This chapter explores various aspects of the concept of "sources of law" in continental analytical jurisprudence. We chiefly pursue two distinct aims. First we try to provide a a reasonably comprehensive, albeit by no means exhaustive, overview of the way analytical legal philosophers in the civil law tradition have conceived the concept of sources of law and the problems thereto related. Secondly, we attempt to advance our own understanding of the concept of sources of law. In the first part, we distinguish between four possible concepts of sources of law: sources as facts, as norms, as authoritative texts and materials and as causal factors. We then explain why sources are best understood as law-creating facts, that is, as criteria of the validity of legal rules. In the second part, we try to show how the classic debates among jurists and lawyers concerning the various types of sources (legislation, precedent, custom) have been received by legal philosophers and to what extent a jurisprudential analysis of these debates could reveal some enduring confusions. On our analysis, the concept of a source of law remains a central concept of both doctrinal scholarship and legal practice in many countries on the Continent; as such, it captures both the fixity of the law’s points of origin – i.e. law-creating facts – and the fluidity of its outcome – i.e. the very content of the law thus created. This is why we can accept both that legal validity is fixed according to more or less determinate criteria picked out by a moderately open-textured rule of recognition, and that the precise content of the law is shaped by interpretive practices.

Download the essay from SSRN at the link.

Chu on The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna's Contribution to the Chinese Penal Code of 1935

Ming-hsi Chu, Northwestern University Department of History, has published The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna’s Contribution to the Chinese Penal Code of 1935. Here is the abstract.

The Chinese Nationalist Government established the Drafting Committee of Penal Code in 1931 and invited Attilio Lavagna, a judge at the Turin Court of Appeal in Fascist Italy, as legal advisor. The penal code was passed by the Chinese legislature in 1934, took effect in 1935, and is currently in force in Taiwan. This paper delves into Chinese and Italian archives to investigate possible Fascist legacies of Chinese criminal law. Lavagna and other Italian scholars have claimed that the 1930 Italian Penal Code and Fascist legal principles influenced Chinese legislators. During his two years in China, Lavagna published in law journals, commented on penal code drafts, and lectured to legislators, judges, and scholars on Fascism. He highlighted three principles of Fascist law: power, order, and fairness, and reported to the Italian Ministry of Foreign Affairs that the Chinese audience was highly interested in exploring Fascism. Enrico Altavilla argued in 1938 that China had modeled after the Italian penal code in terms of territoriality, prohibition against analogy, security measures, subjective principles, and positive criminology theories. Historians of Sino-Italian relations have underscored Lavagna’s contribution to Chinese law. This paper, however, finds that Italian Fascism’s influence was insignificant. Lavagna’s suggestions only focused on technical issues such as how many punishment choices judges should have. Altavilla’s arguments are imprecise because most articles he discussed already appeared in earlier drafts before Lavagna’s arrival. Rather, this paper emphasizes that subjective principles and positive theories were part of the global trend of criminal legislation in the 1930s.

Download the text from SSRN at the link.

Nijman on Bertha Von Suttner: Locating International Law in Novel and Salon

Janne Elisabeth Nijman, T. M. C. Asser Instituut; Amsterdam Center for International Law, University of Amsterdam; The Graduate Institute of International and Development Studies (IHEID), is publishing Bertha Von Suttner: Locating International Law in Novel and Salon in Portraits of Women in International Law: New Names and Forgotten Faces? (I. Tallgren ed., Oxford University Press, 2022). Here is the abstract.

This portrait of Bertha von Suttner brings us to study sources traditionally not considered relevant within the scope of international legal history. That is, female diaries and a bestselling novel, Die Waffen Nieder! (1889), which has a female protagonist. Not allowed access to the formal sessions of the 1899 and 1907 Hague Peace Conferences, Von Suttner resorted to a typical female practice to influence intellectual and political debates. As Salonnière in the Hague during these Conferences, she created an informal social space for frank conversations among the small cosmopolitan elite of diplomats, journalists and international legal experts to influence negotiations and to contribute to the ‘peace through law’ project. Locating international law in her novel and Salon, this portrait connects loosely with a more socio-legal and materialist approach to international legal history. It shows Suttner held a rather well-developed - and at times fairly sceptical - outlook on international law.

Download the essay from SSRN at the link.

ICYMI: Goldfarb on A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment @NealGoldfarb

ICYMI: Neal Goldfarb has published A (Mostly Corpus-Based) Linguistic Reexamination of D.C. v. Heller and the Second Amendment. Here is the abstract.

This is an in-depth linguistic analysis of the key language in the Second Amendment ("the right of the people to keep and bear Arms") that is based primarily on evidence of actual 18th-century usage. That evidence comes from two corpora that have been developed and made available by the BYU Law School as resources for researching the original meaning of the language used in the Constitution: COFEA (the Corpus of Founding Era American English) and COEME (the Corpus of Early Modern English). The corpus data provides powerful evidence that contrary to what the Supreme Court held in District of Columbia v. Heller, "bear arms" was used in the Second Amendment in its idiomatic military sense, and in fact that it was most likely understood to mean serve in the militia. Thus, the right to bear arms was most likely understood as being the right to serve in the militia. The analysis proceeds roughly as follows: "BEAR" and "ARMS": The Supreme Court’s interpretation of "bear" and "arms" in District of Columbia v. Heller was accurate as far as it went, but it is clear from evidence of historical usage that was unavailable at the time that the Court’s interpretation failed to reflect how "bear" and "arms" were actually used in the late 18th century. Although "bear" was sometimes used to mean ‘carry,’ the two words weren’t generally synonymous. The ways in which "bear" was used differed substantially from those for "carry." While "carry" was often used to denote the physical carrying of tangible objects (e.g., "carry baggage"), "bear" was seldom used that way. In fact, "carry" had by the end of the 1600s replaced "bear" as the verb generally used to convey the meaning ‘carry.’ In addition, although "arms" was often used to mean ‘weapons,’ it was also used roughly as often to convey a variety of figurative meanings relating to the military. "BEAR ARMS": The corpus data for "bear arms" was overwhelmingly dominated by uses of the phrase in its idiomatic military sense. (This is unsurprising given the conclusions, above, regarding "bear" and "arms.") The Supreme Court in Heller was therefore mistaken in declaring that the “natural meaning” of "bear arms" was essentially, ‘carry weapons in order to be prepared for confrontation.’ The phrase was ordinarily used to convey the meaning ‘serve in the military’ (specifically, ‘in the militia’) or ‘fight in a war.’ "THE RIGHT OF THE PEOPLE TO...BEAR ARMS": Consistently with how "bear arms" was ordinarily used, the right to bear arms was most likely understood as conveying its idiomatic military sense, and in particular as meaning ‘the right to serve in the militia.’ That conclusion is based to a large extent on the fact that there is reason to think that "bear arms" was understood to mean the same thing as to the right to bear arms as it meant with respect to the duty to bear arms — and the duty to bear arms was understood as a duty to serve in the militia. In addition, there is reason to believe, contrary to what the Court said in Heller, that as used in the Second Amendment, "the people" referred to those who were eligible for militia service. The interpretation described above is not ruled out by the fact that "bear arms" appears as part of the phrase "keep and bear arms." Although that interpretation requires that arms be understood as being simultaneously literal (as part of "keep arms") and figurative (as part of "bear arms") there is reason to believe that that was in fact how "keep and bear arms " was understood at the time of the Second Amendment’s framing and ratification.

Download the article from SSRN at the link.

Phillips and Blackman on Corpus Linguistics and Heller @JoshMBlackman

James Cleith Phillips, Chapman University School of Law, and Josh Blackman, South Texas College of Law, are publishing Corpus Linguistics and Heller in volume 56 of the Wake Forest Law Review (2021). Here is the abstract.

In District of Columbia v. Heller, the Supreme Court sharply divided over the meaning of the twenty-seven words in the Second Amendment. Justice Scalia wrote the majority opinion. He concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In short, an “individual” right. Justice Stevens, in his dissent, contended that the Second Amendment “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” That is, a “collective” right. Justice Scalia and Justice Stevens both made linguistic claims about four elements of the Second Amendment: “right of the people,” “keep and bear arms,” “keep arms,” and “bear arms.” Both the majority and the dissent used various textualist approaches to consider these four phrases, but their toolkit in 2008 was limited. They considered only a fairly narrow range of sources to interpret the text. Today, we can do better. In this Article, we will grade the four linguistic claims made in the Heller case using corpus linguistics. We rely on the Corpus of Founding Era American English (“COFEA”). In 2015, one of us conceptualized and oversaw the initial development of COFEA. We performed five queries with COFEA. First, we queried right of the people. Second, we queried keep and bear arms (and synonyms). Third, we queried the word right within six words of arms. Fourth, we queried the word keep, and variants of keep, within six words of arms. Fifth, we queried the word bear, and variants of bear, within six words of arms. We used multiple coders who independently coded their results using a type of double-blind methodology. Both the majority and the dissenting opinions erred with respect to some of their linguistic claims. Justices Scalia and Stevens should have expressed far more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources they reviewed. Additionally, corpus linguistic theory reveals that there are inconsistencies in both Justice Scalia’s and Stevens’s descriptions of the Second Amendment’s original public meaning.

Download the article from SSRN at the link.

Gerber on Liberal Originalism in Connecticut Constitutional Interpretation @QuinnipiacLRev

Scott D. Gerber, Ohio Northern University College of Law, is publishing Liberal Originalism in Connecticut Constitutional Interpretation in the Quinnipiac Law Review. Here is the abstract.

This Article is my contribution to a Quinnipiac Law Review symposium about the history of the Connecticut constitution. The first part of the Article explains what liberal originalism is. The second section chronicles the “higher law” background of colonial Connecticut. The third portion describes Connecticut’s profound commitment to the Declaration of Independence. The fourth segment assesses the draft U.S. Bill of Rights written in the hand of Connecticut’s own Roger Sherman. The conclusion maintains that a liberal originalist approach to interpreting the Connecticut constitution is preferable to the less generous approach to deciding individual rights cases articulated by the Connecticut Supreme Court in State v. Geisler (1992).

Download the article from SSRN at the link.

Backer on Robert Cover and International Law--Narrative Nudges and Nomadic Nomos @BackerLarry @TouroLawReview

Larry Catá Backer, Penn State Law, is publishing Robert Cover and International Law -- Narrative Nudges and Nomadic Nomos in the Touro Law Review. Here is the abstract.

What was once understood as a unified field of international law, emerging from the state system and centered on the rationalization of the relations among public authorities has fractured. What had been the expression of a unified narrative of the organization of human society around the allocation of political authority now searches for new bases for authority as states become market actors, market actors assume governmental authority, markets define the territories within which law is made and applied, and the normative proscriptions of traditional law are quantified and data driven. This essay considers the way that Robert Cover’s insights on nomos, narrative, and the sacral (exogenous) elements both may inform the rationalization and authority of these critical developments in the constitution of international law. Cover advanced the perception that law was neither fixed nor aligned with and expressed through states; it was nomadic and its narrative was nudging. This is founded on the twin premises that, first, narrative produces multi-sourced nomos within a domestic legal order, and second, that international law produces a distinct plane of narrative with its nomos. Assuming both, then it is likely that international normativity will resist its reduction to a singularity, or single expressive force. These insights are first applied to international law’s post-1945 orthodox narrative and its challenges, constructed as a form of animal husbandry. It then considers this orthodoxy against emerging nomic challenges: the private law of public law bodies, the public law of private bodies, data driven international law-norms, and the emerging systems of platform governance at the international level. Each of these expressions of the imaginaries of international law contains its own nomos, and its own narratives within it. Each envisions bridges from quite distinct “here” to very different “there.” Each is grounded in quite distinct sacral foundations. Cover’s insights suggests both the power and permanence of these nomic contests within an international law that has at once lost its moorings in public law but is building new foundations of authority and action interlinked with but distinct from public law. Nonetheless, at its limit we arrive at the current state, where the central challenges the question of the relationship between collectives and the technologies of its production.

Download the article from SSRN at the link.

Call For Papers: The Legal Treatise: Past, Present, and Future @nmignanelli

 Call for Papers – The Legal Treatise: Past, Present, and Future

 

The Lillian Goldman Law Library and Law Library Journal invite proposals​ for a symposium on the Legal Treatise to be held at Yale Law School on Friday, March 24, 2023. 

 

The purpose of this symposium is to examine the many aspects of the history, present circumstances, and future of the legal treatise as a source and genre. Possible topics include but are not limited to: the origins of the treatise, the role of the treatise in English and American law practice and legal culture during particular periods in history, the commodification of the treatise, international and comparative perspectives on the treatise, microhistories of specific treatise titles, biographical accounts of treatise writers, rivalries between treatise writers, treatise authorship successions, reflections on contemporary treatise writing and publishing, the rise of the scholarly monograph, the (in)accessibility of the treatise, the transition of the treatise from a print resource to an electronic resource, the decline of the multi-volume treatise in law practice and legal scholarship, and theories about and proposals for the future of the treatise. 

 

Please send proposals in the form​ of an abstract to Nicholas Mignanelli at nicholas.mignanelli@yale.edu. Please be sure to include your name, institutional affiliation (if applicable), and contact information in your email. Those whose proposals are accepted will be invited to present at the symposium and will have the opportunity to publish their paper in Law Library Journal.  Early-career and previously unpublished scholars, as well as previously published authors​, are encouraged to submit. The submissions deadline is June 1, 2022.

Ruipérez on Monuments As Signals: The Political Effect of Confederate Commemorations

Ana Ruipérez, European University Institute, has published Monuments As Signals: The Political Effect of Confederate Commemorations. Here is the abstract.

What information do observers infer from contested symbolic heritage and how does that information change their political attitudes? Using a survey experiment, I explore the case of Confederate commemorations. After visualizing a video of the same town with and without Confederate commemorations, subjects report their beliefs and attitudes about the locality and its citizens. I find that Confederate commemorations signal a conflictive history, Southern pride and secessionist and Republican leanings. Importantly, they signal less support for Black Lives Matter and less care about racial equality. Respondents exposed to Confederate commemorations report more negative emotions and external political efficacy, trust the citizens in the town less, and think they would be less valued in the community with such symbols. They are less willing to make donations to schools in the town and, overall, find it a worse place to live. I find greater effects for Democrats and Black respondents.

The full text is not available from SSRN.

Pohlman on Revisiting the Fried Chicken Recipe @zach_pohlman

Zachary B. Pohlman is publishing Revisiting the Fried Chicken Recipe in volume 98 of the Notre Dame Law Review. Here is the abstract.

Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If we consider those who wrote the recipe and their joint act of recipe-writing, however, I question whether that conclusion remains so obvious. This Essay takes a closer look at the chefs who wrote the fried chicken recipe and their act of recipe-writing that produced it. I argue that the meaning of the fried chicken recipe is not its original public meaning but is rather the meaning the chefs intended the recipe to have, even on Lawson’s own terms.

Download the essay from SSRN at the link.

See also 

Gary Lawson, On Reading Recipes...and Constitutions, 85 Geo. L.J. 1823 (1997), and the later Michael C. Dorf, Recipe for Trouble: Some Thoughts on Meaning, Translation and Normative Theory, at 85 Geo. L.J. 1996-1997. 

Green on United/States: A Revolutionary History of American Statehood @TempleLaw @michlawreview

Craig Green, Temple University School of Law, is publishing United/States: A Revolutionary History of American Statehood in volume 119 of the Michigan Law Review (2020). Here is the abstract.

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential. “States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification. Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.

Download the article from SSRN at the link.

Kimble on Scouring Dictionaries: Their Overuse and Misuse in the Courts @ProfJoeKimble @WMUcooleylaw

Joseph Kimble, WMU-Cooley Law School, has published Scouring Dictionaries: Their Overuse and Misuse in the Courts at 41 Dictionaries: Journal of the Dictionary Society of North America 249 (2021). Here is the abstract.

Under the influence of textualism, courts have increasing turned to general dictionaries when interpreting the meaning of contested terms. This resort to dictionaries is suspect for two main reasons: as practiced, it’s arbitrary and unsystematic; and it’s linguistically questionable for determining meaning in a legal context. This article looks primarily at the first point—the courts’ arbitrariness when picking which definition they choose to apply. Using three cases from the Michigan Supreme Court, the article argues that the Court majority cherry-picked a definition that did not seem to fit with an English speaker’s common understanding of the term in context and that ran counter to common sense, practical considerations, or the statute’s purpose.

Download the essay from SSRN at the link.

Bratspies on This Great Catastrophe: Bungling Pandemics from 1918 to Today @RBratspies @MSUILR

Rebecca M. Bratspies, City University of New York, School of Law, is publishing This Great Catastrophe: Bungling Pandemics from 1918 to Today in volume 30 of the Michigan State University College of Law International Law Review (2021). Here is the abstract.

In examining how badly the United States bungled its COVID-19 pandemic response, it is worth going back to the commemorations of the 100th anniversary of the 1918 flu pandemic. Author after author cautioned that the next pandemic would overwhelm the United States health system and that the demand for hospital beds, treatments, and medical staff would quickly outstrip supply. These prescient predictions from just two years ago. Why, when the risks were so obvious and so clearly understood, were they ignored? In answering that question there is blame enough to go around. The American public increasingly refused vaccines for communicable diseases, resisted spending for health research, and elected anti-science candidates. Those elected officials in turn failed to take obvious steps to ward off an entirely foreseeable disaster. Some of these developments are new(ish), relating to the specifics of the current political climate. Yet what is most striking is how readily official responses fell into virtually the same patterns that stymied effective pandemic response in 1918, and how structural racism predicted which communities would be hardest hit and least served by government responses. Instead of learning from the mistakes of the 1918 pandemic we have largely repeated them. This paper traces some of the threads of complacency, hubris, isolationism, and distrust that got in the way both times, and draws some broader lessons we must learn about American political culture before the pandemic next time.

Download the article from SSRN at the link.

Libel and Lampoon: Andrew Bricker in Conversation with Marissa Nicosia, April 12th at 12 (noon) Eastern Time @rarebookschool @Nicosia_Marissa

 

From Holly Borham, Senior Fellow in the Andrew W. Mellon Society of Fellows in Critical Bibliography at Rare Book School. She is Associate Curator of Prints, Drawings, and European Art at the Blanton Museum of Art at the University of Texas at Austin.

Join author Andrew Bricker and interviewer Marissa Nicosia for a conversation about Bricker’s book Libel and Lampoon: Satire in the Courts, 1670–1792 (Oxford University Press, 2022). Following this conversation, the audience will have the opportunity to participate in a Q&A session moderated by Holly Borham. This event is part of a series celebrating new books in critical bibliography, and is sponsored by Rare Book School’s Andrew W. Mellon Society of Fellows in Critical Bibliography (SoFCB).  

Event link: https://rarebookschool.org/all-programs/events/libel-and-lampoon-author-andrew-bricker-in-conversation-with-marissa-nicosia-on-satire-in-the-english-courts-1670-1792/

Everyone is welcome to attend this free event. Advance registration is required; to register, click here. Registration closes at 10 a.m. ET the day of the event. We will send you the Zoom URL and password after 10 a.m. ET on the day of the event. Please direct any questions to the SoFCB Administrative Director at rbs-mellon@virginia.edu. This event will be recorded and shared to the RBS YouTube channel. 

Andrew Bricker is Assistant Professor of English in the Department of Literary Studies at Ghent University and a Senior Fellow in the Andrew W. Mellon Society of Fellows in Critical Bibliography at the Rare Book School at the University of Virginia. His research focuses on interdisciplinary approaches to satire, the law, laughter, and humor. His first book, Libel and Lampoon: Satire in the Courts, 1670–1792 (Oxford University Press, 2022), focuses on the development of defamation law in relation to written and visual satire during the seventeenth and eighteenth centuries in Britain.

Marissa Nicosia is Associate Professor of Renaissance Literature at The Pennsylvania State University–Abington College and a Senior Fellow in the Andrew W. Mellon Society of Fellows in Critical Bibliography at Rare Book School. She has published articles on early modern English literature, book history, and manuscripts in Modern Philology, Milton Studies, and The Papers of the Bibliographical Society of America. Marissa edited the collection Making Milton: Print, Authorship, Afterlives (Oxford University Press, 2021). She runs the public food history website Cooking in the Archives.

Waldron on Terrorism, Words, and Asymmetric Warfare @JeremyWaldron @nyulaw

Jeremy Waldron, NYU School of Law, has published Terrorism, Words, and Asymmetric Warfare as NYU School of Law, Public Law Research Paper No. 21-52. Here is the abstract.

Classic examples of terrorism involve murderous attacks on innocent civilians. But what about attacks on military forces, such as the USS Cole attack or the 1983 Marine Barracks attack or, for that matter, the 9/11 attack on the Pentagon? It is tempting to say that calling these attacks "terrorism" represents a cynical extension of the term for political purposes. In this paper, however, I argue that calling such attacks instances of terrorism can be justified by lines of thought that engage with multiple ways in which the fate of military personnel can affect the terrorization and insecurity of civilians. The paper explores five such lines of thought. The idea is not to preclude the view that the extension of the use of "terrorism" is cynical. It often is. But that is not the only possible explanation.

Download the article from SSRN at the link.

Koppelman on Justice Alito, Originalism, and the Aztecs @NorthwesternLaw @AndrewKoppelman

Andrew Koppelman, Northwestern University School of Law, has published Justice Alito, Originalism, and the Aztecs as Northwestern Public Law Research Paper No. 22-02. Here is the abstract.

Justice Samuel Alito is anachronistically mistaken when he claims, in his Fulton v. Philadelphia concurrence, that the original meaning of the Free Exercise Clause of the First Amendment is a judicially enforceable right to exemption from generally applicable laws. The doctrines and practices of strict scrutiny, narrow tailoring, and compelling interests came into existence in the 1960s. Alito’s evidence for his originalist claims misreads his evidence and has extravagant implications. If judicially crafted exemptions are to be defended, this case must be made on nonoriginalist grounds.

Download the paper from SSRN at the link.

Persaud on The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy @FAMULaw @seattleulaw

Shiv Persaud, Florida A&M University College of Law has published The American Constitution in the Cycle of Kali Yuga: Eastern Philosophy Greets Western Democracy at 20 Seattle Journal for Social Justice 63 (2021). Here is the abstract.

The Article discusses an application of the ancient Indian concepts of Dharma and Yuga, over our constitutional history in order to give us a clearer philosophical understanding of what the Constitution means to us and our future. Perhaps it is time to start talking about the real intent of the Framers in forming “a more perfect union” and how to get there. The purpose of this Article is to open a new discussion on these issues against a different background of critical analysis, rooted in Eastern philosophy.

Download the article from SSRN at the link.